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2025 DIGILAW 1042 (GAU)

Monfort School v. Mridula Konwar Hazarika

2025-06-16

DEVASHIS BARUAH

body2025
JUDGMENT : DEVASHIS BARUAH, J. Heard Mr. A. Dhar, the learned counsel appearing on behalf of the Petitioners and Ms. P. Das, the learned Standing counsel appearing on behalf of the Secondary Education Department. 2. In both the proceedings, the petitioners herein have assailed the orders dated 08.01.2024 passed in Misc. (J) Case No.4/2024 as well as the order dated 01.02.2024 in Misc. (J) Case No.11/2024 under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (for short ‘the Code’) whereby certain ex-parte prohibitory as well as mandatory directions have been issued by the learned District Judge, Dibrugarh. 3. Taking into account that the issue involved in both the proceedings are one and the same, this Court takes up both the proceedings for disposal by this common judgment and order. 4. Mr. A. Dhar, the learned counsel appearing on behalf of the petitioners submitted that the petitioner No.1 is a Minority Educational Institution and this aspect of the matter would be apparent from the certificate issued by the National Commission for Minority Educational Institutions dated 21.03.2012. He submitted that being a Minority Educational Institution, the petitioners’ school would not come within the ambit of Non-Governmental Educational Institution as would appear from the very definition of the Non- Government Educational Institution contained in Section 2(xv) of Assam Non-Government Educational Institution (Regulation and Management) Act, 2006 (for short ‘the Act of 2006’). 5. The learned counsel for the petitioners therefore submitted that the petitioners being Non-Government Educational Institution, the Educational Tribunals which have been constituted pursuant to an interpretation of Section 27 of the Act of 2006 read with Rule 21(d) of the Assam Non- government Educational Institutions (Regulation and Management) Rules, 2007 given by the Full Bench of this Court in the case of Abdul Gofur Mondal Vs. State of Assam and Others and the subsequent notification issued on the basis thereof dated 03.12.2015 whereby the Court of the District Judge and Additional District Judge of each district have been empowered to function as Educational Tribunals would have no jurisdiction. The learned counsel for the petitioners therefore submitted that the learned District Judge, Dibrugarh could not have exercised jurisdiction over the petitioners’ school and passed the impugned orders which have been assailed in both the applications before this Court. The learned counsel for the petitioners therefore submitted that the learned District Judge, Dibrugarh could not have exercised jurisdiction over the petitioners’ school and passed the impugned orders which have been assailed in both the applications before this Court. He submitted therefore that the impugned orders be interfered with in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution. 6. This Court upon hearing the learned counsel for the petitioners, put a specific query upon the learned counsel for the petitioners as to whether the instant proceedings only relate to the challenge to the impugned orders whereby the learned District Judge had exercised powers for grant of ex- parte mandatory as well as the prohibitory injunctions. The learned counsel submitted that by way of the instant proceedings, the order dated 08.01.2024 passed in Misc. (J) Case No.4/2024 as well as the order dated 01.02.2024 in Misc. (J) Case No.11/2024 have been put to challenge. 7. In the backdrop of the above, let this Court now take note of as to whether this Court should exercise its supervisory jurisdiction to interfere with the orders dated 08.01.2024 passed in Misc. (J) Case No.4/2024 as well as the order dated 01.02.2024 passed in Misc. (J) Case No.11/2024. It is very pertinent to take note of that these orders are passed in exercise of powers under Order XXXIX Rule 1 and 2 of the Code and under such circumstances, an appeal lies under Order XLIII Rule 1(r) read with Section 104 of the Code. 8. This Court finds it relevant now to take note of the judgment of the Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others Vs. Tuticorin Educational Society and Others reported in (2019) 9 SCC 538 wherein the Supreme Court had observed that when there are provisions provided in the Code for filing appeals, the jurisdiction under Article 227 of the Constitution should be taken as an absolute bar. Paragraph Nos. 12 and 13 of the said judgment being relevant are quoted herein under: “ 12. Paragraph Nos. 12 and 13 of the said judgment being relevant are quoted herein under: “ 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai, pointed out in Radhey Shyam v. Chhabi Nath that “orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts”. 13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” 9. Be that as it may, this Court finds it pertinent to take note of as to whether the learned District Judge, Dibrugarh had the jurisdiction to pass the impugned orders taking into account the submission made by the learned counsel for the petitioners. The certificate so issued by the National Commission for Minority Educational Institution dated 21.03.2012 makes it very clear that the petitioners’ school comes within the ambit of minority institutions and declared so in terms with Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004. 10. The certificate so issued by the National Commission for Minority Educational Institution dated 21.03.2012 makes it very clear that the petitioners’ school comes within the ambit of minority institutions and declared so in terms with Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004. 10. This Court further finds it relevant to take note of the definition of “Non-Government Educational Institution” as contained in Section 2(xv) of the Act of 2006. Section 2(xv) of the Act of 2006 being relevant is reproduced herein under: “ (xv) “non-government educational institutions” means schools established and run by an individual or association of individuals or any Non-Government Organization or Society or Trust, except the schools established and maintained by minorities under clause (1) of Article 30 of the Constitution of India and imparting education at Primary, Middle, Secondary and Higher Secondary Level without receiving any grants-in-aid from the State Government excluding the educational institutions run or aided by the Central Government or the State Government. The word “institution” wherever it occurs in the Act shall be construed accordingly.” 11. From a perusal of the said definition itself, it would be clear that the schools established and maintained by minorities under Clause 1 of Article 30 of Constitution is outside the scope of the definition of Non-Governmental Educational Institution if such schools are imparting education at Primary, Middle, Secondary and Higher Secondary levels without receiving any grant- in-aid from the State Government excluding the educational institutions run or aided by the Central Government or the State Government. 12. From the above definition therefore, it is clear that merely being a Minority Educational Institution would not take the petitioners’ school outside the purview of Non-Governmental Education Institution unless the petitioners’ school have been imparting education at Primary, Middle, Secondary and Higher Secondary levels without receiving any grant-in-aid from the State Government excluding the educational institutions run or aided by the Central Government or the State Government. This aspect would require a finding of fact which the learned District Judge would have to exercise, if such appropriate applications are filed before the learned District Judge. 13. Considering the above, it cannot therefore be said at this stage whether the petitioners’ school would be a Non-Governmental Educational Institution or not and outside the purview of the Act of 2006. 13. Considering the above, it cannot therefore be said at this stage whether the petitioners’ school would be a Non-Governmental Educational Institution or not and outside the purview of the Act of 2006. Under such circumstances, it is therefore the opinion of this Court that the question of exercising the jurisdiction under Article 227 of the Constitution against the orders passed under Order XXXIX Rule 1 and 2 of the Code would not arise in view of the clear observations made by the Supreme Court in the above quoted paragraphs rendered in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (supra). 14. Accordingly, this Court does not find merit on the submission pertaining to the effect that the District Judge cum Educational Tribunal did not have the jurisdiction for which both the petitions stands dismissed. 15. Taking into account that both the petitions have been dismissed on the ground of non-maintainability, liberty is given to the petitioners to assail the impugned orders dated 08.01.2024 passed in Misc. (J) Case No.4/2024 as well as the order dated 01.02.2024 in Misc. (J) Case No.11/2024, if so advised and the period from 20.02.2024 till date be excluded while computing the period of limitation. 16. Interim orders passed on 23.02.2024 in both the petitions stands vacated.